Professional Documents
Culture Documents
and
H. J. HEINZ COMPANY,
Employer.
________________________________/
September 7, 2005
where workers are represented by Local 705 of the Retail, Wholesale and
between the parties are governed by a contract running from November 10,
worker at the plant, called in to say that she would be late for her shift,
which had begun earlier at 6:00 o’clock (CX 4). Afterward, her husband
drove her to work. When they arrived at the plant, the guard at the gate told
her that she had been locked out of the Company’s computer system and to
tell her husband to wait for her. Grievant called the Company’s human
resources department and was told to go home because there was no work
called the manager of human resources (“HR manager”), who confirmed that
there was no work for Grievant that day and that her services were not
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home with her husband. On May 5, 2004, Grievant was given a warning
Company received on May 11, 2004 (JX 2). In response, the Company
resolution to the dispute, so, by letter dated March 1, 2005, the Union
The Company conceded that this is a disciplinary matter, in which it has the
burden of proof. The Company contends that it acted pursuant to a work rule
The Company claims that Grievant was over two hours late on May 3, 2004,
Article X, § 3:
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reasonable rules and regulations for the safe, sanitary and efficient
conduct of the Company’s business and reasonable penalties for the
violation of such rules. The Company has established such rules,
regulations and penalties, will post them in each department, and
agrees to apply such penalties indiscriminately to all employees. The
Union has the right to object under the grievance procedure to any
rule or penalty established hereunder. Company Brief @ 3, 4.
The Union claims the grievant was disciplined without just cause in
that she was issued an “unreported absence” rather than a tardy, in
violation of the Collective Bargaining Agreement when she was late
to work on May 3, 2004. Union Brief @ 1.
The Union argues that back wages for Grievant is not the only issue
(A) Employees shall be considered tardy if they are not at their work
stations at their scheduled start times.
… CBA @ 28.
The Union denies that Grievant was over two hours late on May 3,
2004, and further denies that the putative work rule was posted. Grievant
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had a subsequent unreported absence on September 2, 2004, for which the
penalty was increased by virtue of the earlier incident in dispute. The Union
III. Discussion
Program, for the proposition that Grievant had a responsibility to notify the
An employee who knows he or she will be absent from work for any
reason must notify the Company before his or her scheduled shift
begins. (If absence is to be for more than one day, the Human
Resources Department must be notified).
Grievant was not absent on May 3, 2004; rather, she was tardy. It is
undisputed that she actually showed up for work that day, albeit quite late.
She did not absent herself from the plant voluntarily; instead, the Company
refused to let her work. Thus, the Excessive Absenteeism Control Program is
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Similarly, the Call In Procedure, cited by Union counsel in opening
Employees who will miss a regularly scheduled shift for any reason
are expected to notify the Company before the start of the shift by
calling the following number (24 hours a day) (616) 392-5757. The
employee shall state his or her name, reason for absence and expected
date of return to work. In case of extended unplanned absence, the
employee must call once per day to advise the Company of his or her
status. The employee is expected to continue to call the Company
until his or her message can be taken by the person representing the
Company – in case of “busy” signal or no answer. Failure to notify the
Company may lead to disciplinary action. CBA @ 29; emphasis
supplied.
this case concerns a tardy. Nothing more need be said about contractual
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Thus, in the absence of posted rules, management bears the burden of
proving that employees knew, or should have known, of the policy
before it can be enforced. Further, if the rules are not posted,
management’s decision to discipline an employee for a violation may
be vulnerable to attack on the ground of discrimination. Especially
when management chooses to fix discharge as the appropriate penalty
for a violation of a rule, no doubt should be left in the minds of the
employees as to the existence and nature of the rule and the
consequences for its violation. Id. @ 780-781; footnotes omitted.
Unilaterally issued work rules may cover matters that the NLRA
indicates would be subject to the mandatory duty to bargain. On
demand, management must bargain with respect to such rules that
affect conditions of employment, and the filing of a grievance
challenging a rule might be considered by an arbitrator “as a demand
to negotiate on the subject.” Even where the agreement gave
management a general right to make and modify rules “for purposes
of discipline and efficiency,” arbitrators have held that “after they
have once become a subject of mutual agreements, very specific
bargaining and agreement are required to make their modification
again exclusively a matter of company decisions and
announcements.” Although a rule affects conditions of employment,
such as one establishing an absenteeism and tardiness program, a
union may lose its right to bargain over the substance of the program
if previously it has refused to bargain over work guidelines. Id. @
768-769; footnotes omitted.
requirement. CBA, Article X, § 3. Second, the Union has the right to grieve
any rule or penalty that the Company establishes. Id. With preliminaries out
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of the way, attention can be turned to the core case.
The Company has not borne its burden of proving compliance with
Although the Company introduced records from its files which indicate that
the putative work rule may have been posted back in 1989 (CXs 2&3), it
2004.
testified that he was unaware of any 2-hour-late work rule and had never
seen one posted. He even stated that he had been more than two hours late
on occasion but had never been locked out. Similarly, the Union’s
that it had been applied within the past year to 3rd-shift employee, Cedric
Cruz, who called in prior to the start of his shift and reported that he would
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be late. When he showed up over two hours late, his supervisor sent him
home and charged him with an unexcused absence.1 However, the Company
manager stated that she did not bring any records of the Cruz incident with
past practice, Elkouri & Elkouri, supra, @ 780, fn 793, evidence of a single
214 and Shiawassee County Sheriff, 05-1 ARB ¶ 3096 (Cornelius Arb
2005); UFCW Local 867 and Cargill Salt Co, 03-2 ARB ¶ 3560 (Cornelius
Arb 2003); Okonite Co, 01-2 ARB ¶ 3830, 28 LAIS 3805 (Cornelius Arb
2001).
establish the posting of the disputed rule either in 1989 or during the
1
As opposed to an unreported absence, with which Grievant was charged. Compare ¶¶ (C)(1) & (2), CBA
@ 27.
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IV. The Remedy
time this year, she may be terminated under the terms of the contract. She
was in the same tenuous position last year. She complains of various aches
and pains and has a Family and Medical Leave Act agreement with the
Company.
When Grievant does not show up for work, the other sanitation
stem from the HR Manager’s frustration over having to deal with Grievant’s
example, PACE Local 731 and Mead Corporation, FMCS No. 00-02983
more interested in pickup truck than work); SEIU Local 79 and Boulevard
Temple Methodist Home, 104 LRP 29256 (Cornelius Arb 2004) (reinstating
and posted in accordance with the requirements of the CBA was virtually
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nonexistent. Consequently, the arbitrator feels that he has no alternative but
May 3rd is a matter of some dispute, the parties’ positions are off by only a
few minutes. Thus, awarding her 6 hours’ back pay based upon an 8:00
o’clock arrival makes the arithmetic simple and can’t be very far wrong.
What would be wrong would be to award her a full day’s pay for May 3, as
the Union requests (Union Brief @ 11). “A fair day’s work for a fair day’s
pay.”
Grievant is entitled to three (3) days’ back pay for her September
suspension.
V. Award
is awarded three (3) days and six (6) hours of back pay. Any benefits
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attendance and other personnel records.
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